By Andrew Tucker, Director at thinc.
In 2020, we saw two developments, pulling in opposite directions; a paradox.
On the one hand, strong criticism of Israel. Two incidents stand out: the widespread criticism of the US Administration’s “Peace to Prosperity” plan unveiled in January 2020, followed soon after by international outrage at Israel’s plan to “extend sovereignty” to parts of the West Bank. The second is the remarkable efforts of the ICC Prosecutor to prosecute Israeli leaders for the “war crime” of allowing Jews to live in their ancestral homeland Judea and Samaria.
On the other hand, there have been signs of growing sympathy for Israel’s position. Several states announced plans to follow the US example and move their embassies to Jerusalem. A growing number of states and experts have expressed criticism of the Palestinian Authority. There has been much criticism of the way international institutions (ICC, UNHRC, UNRWA) handle Israel and the conflict. And the recent wave of ‘normalization’ agreements between Israel, United Arab Emirates, Bahrain, Sudan and Morocco show that the logic of the Arab Peace Initiative (2002) – requiring Palestinian demands to be met before Arab nations would be willing to normalize relations with Israel – no longer holds.
Compare the official EU and US policies. According to the EU, all settlements are illegal, Israel’s settlement policies are a war crime, and the occupation must be ended. The US, on the other hand, says settlements are “not per se illegal”. It recognizes Israel has legitimate rights with respect to Jerusalem and the West Bank. This has become known as the “Pompeo Doctrine”, announced by Secretary of State Mike Pompeo in 2019.
Proponents of each view say international law supports their position. So who is right?
The answer: neither. Their difference of opinion is not about a specific issue of law. Rather, it is a fundamental, philosophical collision of paradigms about what international law is, and how law should – or should not – contribute to the pursuit of justice and peace.
Law is politics
The fact is, international law rarely gives clear-cut answers to complex problems. Finnish legal philosopher Martti Koskenniemi describes international law as language or rhetoric; he calls it “an expression of politics much like Christianity constitutes one type of expression of religious spirituality” and suggests that “issues of justice cannot be solved by the application of ready-made rules or principles”. Legal reasoning constantly oscillates between idealism and realism.
When people purport to interpret and apply law, they are usually using legal language to express political preferences.
Idealism and realism
Those who are of a ‘realist’ mindset tend to accept that international law cannot answer all questions, and advocate a limited role for international institutions.
An ‘idealist’ tends to see law as a means to advance human rights; he/she will tend to promote global governance and advocate an expansive role for human rights law and institutions.
The dominant view in Europe since WWII is an idealist approach that sees the world (and international law) as it should be. It is a strongly moralist stance. Europe constantly criticizes Israel, and argues that a Palestinian state should be created. The international community should take an active role in ensuring that this goal is achieved. Pressure is placed on Israel to accede to Palestinian demands. International law is invoked to support this approach.
The current US Administration – and a small but growing number of other states – adopts a more realist approach, which accepts the world (and international law) as it is. Israel, the Palestinians and the other actors in the region have rights and obligations. Each is responsible for its actions, and it is up to the parties to work out their differences. The international community can make suggestions but should not advance any particular outcome. These states also invoke international law to justify their approach.
Legal reasoning involves three basic elements: (a) defining the factual (historical, legal, political) problem (e.g. what is this conflict about: self-determination; regional powers, or even religion?) (b) ascertaining the relevant legal principle, (e.g. the law of belligerent occupation, and/or the law of sovereignty?) and (c) applying that principle to the facts (e.g. assuming article 49(6) of the Fourth Geneva Convention applies, has there been a “transfer or deportation” of civilians into the territory?).
One way or another, and more or less explicitly, the ‘idealists’ and ‘realists’ take a radically different approach to these three different issues. This is nowhere more apparent than in the Israel/Palestine conflict.
Broadly speaking, the realist camp accepts that the Middle East is a complex place. It consists of many different ethnic, cultural and religious groups, each of which claims a connection with certain territory, each with its own (evolving) self-awareness, history and political and religious goals. One of these groups is the Jewish nation, which was born 3,500 years ago in the territory now known as Palestine. The majority of this nation (Jews) have lived in the diaspora for over two millennia, while retaining a strong national and religious tie with the land.
Another group is the Palestinian people, which has been living in the territory of Palestine for centuries, and considers it has been uprooted by Zionism and the return of the Jewish people to the land.
The realist will apply the law carefully on the basis of precedent, and will accept that international law contains no ready-made answers. At the end of the day the realists accepts that the local actors themselves are the only ones who can reach mutually-satisfactory arrangements to ensure their peaceful coexistence.
The idealist, on the other hand, tends to see Israel and the Palestinians through the lens of perpetrator and victim. This lens looks for clear solutions reflecting what is right and wrong. Israel is seen as an “occupying power”, and the Palestinians as victims under occupation. This line of reasoning places all responsibility on Israel, and ignores the responsibility of the Palestinian people themselves for the situation in which they find themselves. This is the dominant view in Europe.
The changing world order
Until a few decades ago, it was universally accepted that the international legal system was based – at least in theory – on separate, independent and equally sovereign states – each of which has exclusive jurisdiction over its territory, and none of which can be bound without its consent. Today, international law is dominated by idealists who advocate defence of human rights, limiting the sovereignty of states, and expanding the jurisdiction of international institutions.
Three major developments since 1945 have stimulated this. The first is the explosive development of human rights law, including institutions such as the UN Human Rights Council (UNHRC), and the multitude of Non-Governmental Organizations like Amnesty International and Human Rights Watch, which by and large have been very critical of Israel.
The second is the development of international humanitarian law, especially the adoption in 1949 of the Geneva Conventions, including the Fourth Geneva Convention on the law of belligerent occupation.
The third has been the gradual crystallization since the early 1960’s, of the rights of peoples to self-determination, as a legally-binding principle. This is reflected in the recognition of the Palestinians as a “people” after 1973 within the UN, and of the PLO as their sole legitimate representative.
A new approach?
For forty years, this ‘idealist paradigm’ has been the dominant paradigm. But one wonders if this position meets the realities and needs of today’s world. For sure, it hasn’t brought peace.
Indeed, there are signs of cracks in the edifice. The submissions by legal experts to the ICC earlier this year show an increasing understanding that the Israel-Palestine dispute cannot be seen solely through a perpetrator/victim lens. There is a growing perception that the factual issues are complex, and the law provides no simple answers.
The recent normalization agreements between Israel and a number of Arabic states seem to indicate that a growing number of Arabic/Islamic states prefer to switch from the ‘idealistic’ / ‘perpetrator-victim’ paradigm to a more ‘realistic’ approach – a switch from a situation of captivity and stagnation to a future of peace, prosperity and security. Perhaps it is time for “realistic idealism”.